TrW: 



^&m, 



§fif&htMfrwf^ 



^if 



wmm 



M^Zw^H^UL 



wmmmmm 



0^mf^^0\^. 



WritJ^w.rtn 1 . 



W&^^e ■ 



& Ska* 






mw/% 



a/aa/ 



Tm 






'M.^i^ri.^ a ; 



■r\r\r\ s\*sr\ 



ffiA«, 









{'library of congress. # 

^ — — - — . f 

J UNITED STATES OF AMERICA. J 



'Mmrm 



mm 



.MTA 



fcsm^r\ 



ftrPi/W 






/WVvWfl/V 



WmfM^w\ 



mmw 



A^O^A 









^aUA ! AV*\WA'hA/ 



,AA*i 



V-V ■£> » o, 



A'&V* ^ " "A/ 



Yw» 



«^Ymyv*rf9#W£? \: 



^fctiMftftpfifi 



AaUv^ 



dRtfei 



Ff^fafifafa^M^M 



/AA'aA : a- 



uuttuj 



fiftfc/S. 



i«W«iiiffl^ 






\ftAA 



mmmmmmm 



. raawsm^ 






mwm, 



imw^WffWW 



'ArlrWS 



r^SriiySMt 



irvSH 



^^WPC 



2Pn$$ 



M^K^r^' 



f*\ a /^; /& ^ f* 






mfmi>mm 



%&mmMmm%m 






'^w« 









fAiinm^ 



lOAi-v*/^ 



%m&^(y^im^ 



s^^mfmfmm^m 









mmmm 



»'ff«7sn 



^A/= -: *w« 



. - ^ 






K 



■iM/tfW 









iAftft 



^ r ^ a 



mmmmwmmm 



H8M 



*mmmm®$M, 



" Aa a 






^#ii 



*wm 



IAa'a. 



Afl^s'^ 



.^»^^A 



fa&MmU 






l«iiil& 



Ji!ffl*YVJgJJ3JflSAm 



ftftAift aAAa^ ^ a - aAftnifffii 



mifWmtt 



AftirS : ^ AAjAaAA a A 



w^PIS^^ 



ArA«»W^ 



toy^Ai^ 



S4TO^aIaA^ : s'Mw 



SEGEEGATION 



OF 



MINERAL AND AGRICULTURAL LANDS. 



OFFICIAL CORRESPONDENCE RELATIVE TO LANDS IN THE 

MINERAL REGION WHICH HAVE BEEN SUSPENDED 

FROM AGRICULTURAL ENTRY UNTIL SHOWN 

TO BE NON-MINERAL. 



: 



GENERAL LAND-OFFICE, JUNE 17, 1872. 



WASHINGTON: ./ 

GOVERNMENT PRINTING OFFICE. 
18 7 2. 



1/ <Q 



#**? 




22 

SEGREGATION OF MINERAL AND AGRICULTURAL LANDS. 



Department of the Interior, General Land-Office, 

Washington, D. C, November 24, 1871. 

Sir : I have the honor to represent that, prior to the date of my taking charge of this office, 
the practice prevailed of allowing pre-emption and railroad rights to attach to lands in the mineral 
region, when the same were returned by the surveyors as agricultural land, without making an 
investigation as to the correctness of such return, unless affidavits were filed alleging the tracts to 
be mineral. 

As an evidence of the evil results of this course, I would invite your attention to the following- 
case, now before this office, viz : 

The official plat of survey of township 1 north, range 1 east, Mount Diablo meridian, Cali- 
fornia, was approved by the surveyor general June 12, 1867. The southeast quarter of section 
19 of said township fell within the limits of the withdrawal for the Western Pacific Eailroad 
Company, and not being returned as mineral, passed to said company by patent dated May 31, 1870. 

On the 26th January, 1871, Joshua Marsh made an entry of this tract at the San Francisco 
land office, after notice; he claiming the possessory right thereto under mining laws by reason of 
his being the owner of a mine of cinnabar therein, located in June, 1864, upon which he had 
expended more than one thousand dollars. 

By reason of this erroneous return, a patent has thus been issued conveying what appears to 
be valuable mining premises; which never would have been done had the land been properly 
returned by the surveyor, the grant to said company expressly excepting and excluding all mineral 
lauds except those containing coal or iron. 

I am impressed with the conviction that it is neither in harmony with the spirit or intent of 
the laws of Congress, nor with true public policy, to sanction the indiscriminate absorption of the 
lands in what has heretofore been known as the reserved mineral belt in the public domain, under 
laws only applicable to lands clearly non-mineral, simply because the deputy surveyors failed to 
return the same as mineral in character. 

This view is strengthened by the fact that very many, in fact the majority, of the applications 
for mineral patents are found, upon consulting our official township plats, to be within subdivis- 
ions not reported as mineral in character. 

In many of the hearings had before the local officers to determine the true character of these 
tracts, the testimony shows conclusively that of a whole quarter or half quarter section sought to 
be entered under the pre-emption law, the only portion really agricultural in character is confined 
to two or three acres upon which the pre-emption party has a house and garden, the agricultural 
utility of the remainder consisting in its adaptability to grazing cattle. 

The mere fact that an individual uses one of these isolated garden-spots, situate in an imper- 
fectly developed mineral region, as a homestead or ranch, does not, it is thought, invest him with 
an equitable right to a Government title to an entire quarter section of land, the real mineral 
character of which has not yet been tested, or, at all events, not sufficiently to enable parties to 
tell with any certainty whether the land contains valuable mines or not. 

The Government is not in such haste to divest itself of its title to the lands situate within 



4 

the heretofore reserved mineral region, as to grant them away by wholesale as agricultural lands, 
before they have been sufficiently explored to determine their true character. 

Such policy would result in the exclusion of other citizens of the United States who might 
desire to exercise their legal right to explore and occupy mineral lands in the public domain. 

When a bona fide agricultural claimant desires the segregation of the ground containing 
his improvements from the adjoining mineral land, he can have the same effected under existing 
circular instructions. 

From the fact that but few of these pre-emption claimants seem disposed to avail themselves 
of the privilege of this segregation, the inference is that in many cases it is not so much on 
account of the agricultural value of the tract as of its probable mineral deposits that title is 
desired. 

Speaking of Nevada County, California, J. Ross Browne, in his official report made March 5, 
1868, to the Secretary of the Treasury, says : 

Its length, from east to west, is about 65 miles, having an average breadth of 20, and containing about 1,300 square 
miles. It is near the middle of the great gold reigou that stretches along the westerly slope of the mountain-chain, 
extends entirely across the auriferous belt, and in the last nineteen years has produced more gold than any tract of 
country of equal extent in the world. 

Referring to the extent of the placer-mines in said county, this report states : 

The product of the placer-mines of Nevada County has neither materially increased nor diminished since 1850, 
and though they have been worked without interruption for nineteen years, the developments of that period have 
barely been sufficient to give us an idea of their vast extent. The shallow diggings which were so easily worked and 
afforded such large returns to the early miners are mostly exhausted ; but the deep placers, or hill-diggings, in the 
channels of ancient streams, in many places underlying hundreds of feet of alluvial deposits and volcanic material, 
cannot be exhausted for a long period of time. In fact, for all practical purposes, they may be considered as in- 
exhaustible. 

Again, on page 127 of said report, it is stated : 

No estimate approaching to accuracy can be male of the amount of gold contained in the plaser-miues of this 
county, and which yet may be brought forth for the benefit of the civilized world. To say that it is enough to pay off 
the national debt would be a moderate estimate, and it is not improbable that in some of these deep placers deposits of 
gold may yet be found in such quantities as will materially diminish the value of the metal. 

The same work gives exhaustive statistics of the extent and value of the gold-bearing quartz- 
ledges in said county, those in the Grass Valley mining district being described as the most valu- 
able in California. 

Township 16 north, range 8 east, Mount Diablo meridian, embraces the towns of Grass 
Valley, Gold Hill, and part of Nevada City, all in the very heart of this rich mining region, and 
yet, upon inspecting the official plat of said township, approved by the surveyor general August 
21, 1807, it is found that no particular portions of the land are returned as mineral and segregated 
from the agricultural portion, as required by the law and instructions. Since the survey and return 
of said township, numerous contests have arisen between miners and pre-emption claimants as 
regards the character of the land, and several applications have been made and titles issued for 
mines therein, no intimation of the existence of which was given, however, upon the official plat 
of said township aforesaid; for instance, the celebrated Eureka gold quartz claim, reported by 
J. Boss Browne to have been worked since 1851, and to be u the most valuable gold mine in the 
county, or perhaps in the world,' 7 yielding about $10,000 per month, is situate in the northeast 
quarter of section 20 of said township, which said tract is not shown by the plat aforesaid to con 
tain any mineral land or claim whatever. 

The widely known Ophir Hill, or Empire Mine, near the town of Grass Valley, is in section 
35 of said township. This mine has been worked since the year 1852, has had $250,000 expended in 
improvements thereon, and is reported to have yielded nearly $2,000,000 in gold ; yet said plat 
gives not the slightest indication that there is any such mine in existence, or that the subdivision 
in which it lies is other than agricultural land. 



Numerous other cases of this kind could be cited, not only in Nevada, but in other of the 
mining counties, of tracts being returned agricultural in character, while, as was subsequently 
shown, there were valuable mines thereon in active operation at the time the survey was made. 

Again, in some of the township plats, certain of the subdivisions are shaded yellow, and 
designated "mineral land," the remainder being designated " agricultural land." Inspecting some 
of these plats, it is found that within these " agricultural" tracts are marked "quartz-ledges," 
" placer-mines," " hydraulic mines," &c, the plat thus contradicting itself. 

Prior to the 26th of July, 188(3, the date of the passage of the mining statute, this mineral 
region had been excluded from survey and sale by the laws of Congress. 

Under the tenth section of said statute it is provided— 

That wherever, prior to the passage of this act, upon the lauds heretofore designated, as mineral lauds, which 
have heen excluded from survey and sale, there have been homesteads made by citizens of the United States or persons 
who have declared their intention to become citizens, which homesteads have been made, improved, and used for agri- 
cultural purposes, and upon which there have been no valuable mines of gold, silver, cinnabar, or copper discovered, 
and whicli are properly agricultural lands, the said settlers or owners of such homesteads shall have aright of pre-emption 
thereto, and shall be entitled to purchase the same at the price of one dollar and twenty-five cents per acre, and in 
quantity not to exceed one hundred and sixty acres, or the said parties may avail themselves of the provisions of the 
act 'of Congress approved May twenty, eighteen hundred and sixty two, entitled "An act to secure homesteads to actual 
settlers on the public domain/' and acts amendatory thereof. 

The eleventh section of said mining statute provides — 

That upon the survey of the lands aforesaid, the Secretary of the Interior may designate and set apart such 
portions of the said lands as are clearly agricultural lands, which lands shall thereafter be subject to pre-emption and 
sale, as other public lands of the United States, and subject to all the laws and regulations applicable to the same. 

From the indefinite nature of the returns made by the deputy surveyors, the impracticability 
of carrying into effect this eleventh section becomes at once apparent, experience having shown 
that little reliance is to be placed upon these plats in determining the true character of the land. 

To set apart the lands "clearly agricultural," from such data, partakes more of the nature of 
guess-work than anything else, for the reason, as has been set forth, that some of the lands contain- 
ing valuable mines are not returned as mineral. 

Public considerations of a high character, therefore, induce me to ask authority for withdrawing 
from disposal as agricultural lands such townships or parts of townships, in this region, as may 
reasonably be presumed from common report, from official and other data, to be properly classed 
as mineral lands, and that no entries thereof be permitted except by legally qualified citizens 
holding mineral claims, in accordance with the mining statute, except in cases where the agricul- 
tural character shall first be established by competent testimony, in accordance with existing 
regulations applicable to the subject. 

I am, sir, very respectfully, your obedient servant, 

WILLIS DRlTMMOND, 

Commissioner. 
Hon. Columbus Delano, 

Secretary of the Interior. 



B. 

Department of the Interior, 

Washington, D. C, November 24, 1871. 

Sir : In reply to your letter of this date, requesting authority to withdraw from disposal as 

agricultural lands certain townships or parts of townships in the mineral region, which have been 

surveyed and returned as agricultural land, but which are believed to be mineral in character, I 

have to state that, upon an examination of the subject, I fully concur in your views, and you are 



6 

hereby authorized to make the necessary withdrawal, and to instruct the local officers not to permit 
any of the tracts which may be withdrawn to be entered as agricultural land, unless the non-mineral 
character of the same shall have been first fully and clearly established by competent testimony. 
Very respectfully, your obedient servant, 

0. DELANO, Secretary. 
Hon. Willis Drummond, 

Commissioner of the General Land- Office. 



C. 

Department op the Inter lor, General Land- Office, 

Washington, D. C, December 2, 1871. 

Gentlemen : Under authority of the honorable Secretary of the Interior you are hereby 
directed to withhold the lands in the following-designated townships in your district from disposal 
under laws only applicable to agricultural land, until the non-mineral character of the same shall 
have first been satisfactorily established at a hearing to be had before you after due notice, in 
manner set forth in circular herewith of date the Gtli May, 1871. This course has been forced upon 
the Department by several circumstances, among which may be cited the fact that the majority 
of applications for mining titles from California are for lands marked "agricultural*' upon the 
official township plats ; that in making these returns of surveys large areas in the heretofore 
reserved mineral belt are marked on the plats as " agricultural lands,*' while upon the same plats, 
and within the tracts so returned as agricultural, are annotations of " quartz-ledges," " mining 
ditches," " hydraulic mines," "diggings," &c, the plat thus contradicting itself and leaving this 
office in the dark as to the true quality of the land. 

In a case now pending before this office of an application for patent for a quicksilver mine, 
one which has been worked for years, it is found that the land was returned as agricultural, and 
falling within the limits of the grant, was patented to the Western Pacific Kailroad Company 
before said application was received. 

Experience having shown that this office cannot with any degree of safety judge of the char- 
acter of these lands from the data furnished by such returns, and there being no authority of law 
for the employment of a competeat geologist to investigate the matter, the head of the Depart- 
ment has, in consideration of the public interests, and to prevent the indiscriminate absorption of 
the mineral lands of the public domain through the instrumentality of insufficient returns, found 
it imperatively necessary to adopt the course herein announced, both for the protection of the 
parties who have already expended time, capital, and labor in opening and developing mines, and 
those of the citizens of the United States who may hereafter desire to exercise their legal right to 
do so. 

The following-designated townships within your district come within this order, viz: 



Township 1 north, ranges 12, 13, and 14 east. 
Township 2 north, ranges 11, 12, 13, 14, and 15 

east. 
Township 3 north, ranges 10, 11, 12, and 13 east. 
Township 4 north, ranges 10, 11, 12, and 13 east. 
Township 5 north, ranges 10, 11, and 12 east. 
Township G north, ranges 10, 11, 12, and 13 east. 
Township 7 north, ranges 9, 10, 11, and 12 east. 
Township 8 north, ranges 9, 10, 11, and 12 east. 
Township 9 north, ranges 9, 10, 11, and 12 east. 
Township 10 north, ranges 8, 9, 10, 11, and 12 east. 



Township 11 north, ranges G, 7, 8, 9, 10, and 11 

east. 
Township 12 north, ranges G, 7, 8, 9, 10, and 11 

east. 
Township 13 north, ranges G, 7, 8, 9, 10, and 11 

east. 
Township 14 north, ranges 7, 8, 9, 10, and 11 east. 
Township 15 north, ranges 7, 8, 9, 10, and 11 

east. 
Township 1G north, ranges 7, 8, 9, 10, 11, 12, 15, 

1G, and 17 east. 



Township 17 north, ranges 16 and 17 east. | Township 19 north, ranges 16 and 17 east, all 

Township 18 north, ranges 16 and 17 east, and I Monnt Diablo base and meridian. 
Yon will at once acknowledge the receipt hereof, and be governed accordingly. 
Very respectfully, yonr obedient servant, 

WILLIS DRUMMOND, Commissioner. 
Register and Receiver, 

Sacramento, California. 



D. 

Department of the Interior, General Land- Office, 

Washington, D. C, December 7, 1871. 

Gentlemen : Under authority of the Honorable Secretary of the Interior, you are hereby 
directed to withhold from disposal as agricultural the lands in the following-designated townships 
in your district, until the non-mineral character of the same shall have first been established at a 
hearing to be had before you after due notice and in the manner set forth in the accompanying 
circular instructions of May 6, 1871. This course has been forced upon the Department by several 
circumstances, among which may be cited the fact that the majority of applications for mining 
titles from California are for lands not marked " mineral" upon the official township plats; that in 
making these returns of surveys, large areas in the heretofore reserved mineral belt are marked 
upon the plats as "agricultural lauds," while upon the same plats and within the tracts so returned 
as agricultural land are annotations of " quartz-ledges," "mining ditches," "hydraulic mines," 
" diggings," &c, the plat thus contradicting itself and leaving this office in the dark as to the true 
quality of the land. 

In a case now pending before this office of an application for patent for a quicksilver mine 
which has been worked for years, it is found that the surveyor failed to mark the land as mineral, 
and the tract falling within the grant was patented to the Western Pacific Railroad Company, 
before said application was received. 

Experience having shown that this office cannot with any degree of safety judge of the charac- 
ter of these lands, whether mineral or agricultural, from the data furnished by such returns, and 
there being no authority of law for the employment of a competent geologist to investigate the 
matter, the head of the Department has, in consideration of the public interests, and to prevent the 
indiscriminate absorption of the mineral lauds of the public domain through the instrumentality 
of insufficient returns, found it imperatively necessary to adopt the course herein announced, both 
for the protection of those who have already expended time, capital, and labor in opening and 
developing these mines, and citizens who may hereafter desire to exercise their legal right to do so. 

The following-designated townships in your district come within this order, and you will treat 
the same as if returned as mineral lands until the non-mineral character is disproved, unless other- 
wise directed by this office, viz : 

Township 1 north, ranges 11, 12, 13, 14, and 15 east. I Township 7 south, ranges 17 and 18 east. 



Township 2 north, ranges 11, 1 2, 13, 14, and 15 east. 
Township 3 north, ranges 10, 11, 12, and 13 east. 
Township 1 south, ranges 12 and 14 east. 
Township 4 south, range 16 east. 
Townships 5 south, ranges 16 and 17 east. 
Township 6 south, range 18 east. 

Please acknowledge receipt hereof as " N." 
Very respectfully, 

Register'and' Receiver, 

Stocldon, California. 



Township 8 south, range 18 east. 
Township 9 south, range 18 east. 
Township 10 south, ranges 20 and 22 east. 
Township 11 south, ranges 22 and 23 east, all 
Mount Diablo meridian. 



WILLIS DRUMMOND, Commissioner. 



8 

E. 

Department of the Interior, General Land-Office, 

Washington, B. 0., January 22, 1872. 

Gentlemen: Under authority of the Honorable Secretary of the Interior, you are directed to 
withhold the lands in the following-designated townships from disposal as agricultural lands until 
the non-mineral character thereof shall have first been fully established at a hearing to be had 
before you in accordance with circular instructions herewith, dated the Gth May, 1871, viz : 
Township 11 north, range 6 east. Township 20 north, ranges 3 and 4 east. 

Township 15 north, range 6 east. ! Township 21 north, ranges 3 and 4 east. 

Township 16 north, ranges 5 and 6 east. Township 22 north, range 3 east. 

Township 17 north, ranges 5, 6, and 7 east. Township 23 north, range 3 east. 

Township 18 north, ranges 4, 5, 6, and 7 east. Township 24 north, range 4 east, all Mount Dia- 

Township 19 north, ranges 3, 4, 5, 6, and 7 east. I bio meridian. 

Please to acknowledge the receipt hereof at once as " N." 
Very respectfully, your obedient servant, 

WILLIS DRUMMOND, 

Commissioner. 
Register and Receiver, 

Marysville, California. 



F. 

Department of the Interior, General Land-Office, 

Washington, B. C, March 11, 1872. 

Sir : In a communication to you of 24th November last, this office submitted a statement as 
to the prevailing mode of disposing of lands in the mineral regions of the United States, which, 
prior to the date of the mining act of 20th July, I860, had been carefully reserved by Congress 
from survey and sale, and after reciting the leading facts as to the inadequate protection of the 
public interests in these lands, in view of the uncertain character of the returns made by surveyors, 
requested authority for suspending the disposal of certain lands as agricultural in character until 
competent proof was furnished that the same were non-mineral. 

On the same date you gave this office the necessary authority to make such suspension and to 
instruct the local land officers not to permit the agricultural entry of any tract so withdrawn until 
its non-mineral character is first shown by competent testimony. 

This office accordingly suspended for non-mineral proof a number of townships within what 
is commonly known as the "mineral belt 1 ' in California, and also a number in the Central City 
land-district, in Colorado Territory. 

This action has created much acrimonious discussion pro and con, especially in California; 
the newspapers in some cases totally misapprehending, as it would appear, the real meaning and 
object intended to be conveyed and effected by the order, by regarding it in the light of a suspen- 
sion of the lands in question from settlement, and a denial in toto of the right of any settler to 
secure title to any tract whatever within the suspended townships, omitting, however, to explain 
that upon making proof of the non-mineral character of an^tract so suspended, the settlers' rights 
would be fully recognized. 

Other journals, especially those published in the mining districts, where the real question at 
issue is more thoroughly understood, readily admitted the propriety of the order, at the same time 
regretting the additional expense necessarily incurred by bona fide agricultural claimants in estab- 
lishing the non-mineral character of their claims. 



9 

The Hon. A. A. Sargent, member of Congress from California, has referred to this office sev- 
eral letters from constituents of his in the mining counties, complaining of the additional expense 
and delay to which they are subjected by reason of being required to prove that their lands are not 
mineral before being allowed to receive patents therefor, and asking a revocation of the order 
requiring such proof where the land claimed is not returned by the surveyor as mineral, or upon 
which affidavits have not been filed alleging the same to be mineral in character. 

Mr. Sargent fully indorses such request, and recommends that said orders be rescinded, 
holding that by the system of mineral affidavits all known mineral lands are declared to be such ; 
to all of which this office has given that careful and respectful consideration demanded by the 
importance and magnitude of the interests involved. 

Congress has from its earliest legislation in reference to public lands made a distinction 
between lands which are mineral and those which are not, and this distinction has invariably been 
enforced in every public land law enacted by that body up to the present time, and so long as the 
legislative branch of the Government sees fit and proper to specially make such distinction, the 
executive has before it the plain duty of enforcing the same, and is without power under the law 
to waive it. 

As recited in my previous communication to you upon this subject, the law of Congress ap- 
proved July 26, 18G6, provides, among other things, for the extension of the public surveys to 
this reserved mineral region, recognizes homestead and pre-emption rights to lands therein not 
mineral, and requires the Secretary of the Interior to set apart such portions as are "clearly agri- 
cultural? to be thereafter subject to disposal as other lands of that class. It is clear from the 
language of this statute that Congress did not intend to abolish or do away with the distinction 
between mineral and agricultural lands, or to allow mineral lands to be classed and disposed of as 
agricultural ; but it simply provided that the public surveys might be extended over a region that 
was so clearly mineral in character, that before that time it had been all reserved for mineral 
purposes, and the tract that should appear to be clearly agricultural and set apart for disposition 
under the laws relating to such lands, while the mineral lands should be still reserved for dispo- 
sition under the laws relating to lands of that class, this Department having no more right to 
dispose of mineral lands in large tracts than it had before the enactment of this law. 

Owing to the fact that the two classes of land in the mineral belt are so interlaced as to 
prevent, in most cases, their segregation by the rectangular sytem of surveys, the proper execu- 
tion of this requirement of setting apart the "clearly agricultural" portions is one of the greatest 
difficulty, and in many cases it is almost impossible. 

During the lapse of ages the melting of snows and washing of rains have had the effect of 
disintegrating the quartz-lodes or other auriferous deposits in the mountains, which are washed 
down into the valleys, fiats, and ravines, the gold, from its greater specific gravity, settling to the 
bottom or bed-rock, these deposits forming the "placers" or "diggings," some of w r hich are quite 
shallow and soon exhausted ; others again being very deep and overlaid with good soil, the 
surface in the latter case being "clearly agricultural," while the deposit underlying the same is of 
such a character as to render the land of great value for mineral. 

Again, there exists in the State of California what are called "blue leads," "cement," or 
"gravel" claims, supposed to be the beds of ancient river-channels, very deep, rich in gold, and 
practically inexhaustible. These immense deposits are frequently covered to a depth of from fifty 
to one hundred feet, the surface of the overlying mass being perhaps tillable land and presenting 
no indication whatever of the valuable underlying deposit. 

Arable land is also sometimes found to overlie quartz-lodes, the existence of which may not 
have been known at the time the settler began his improvements, but were afterward discovered 
by prospecting shafts or otherwise by miners, who thereupon claimed such lodes under local rules 
and customs, together with a sufficient area of surface-ground for the convenient working of such 
mines. 

But aside from the obstacles growing out of the x)eculiar character of the lands, which render 

2 M A L 



10 

it very difficult, even with the utmost circumspection and care, to cany out the intention of ■ 
Congress and prevent the disposition of mineral lands as agricultural, I have found that, owing 
to the grossly careless, not to say fraudulent, manner in which deputy surveyors execute their 
work in the field and make their returns, the distinction which Congress had drawn between 
agricultural and mineral lands was not observed, and whole townships of the richest mineral land 
in the world, including well-known mines which had been worked successfully for years and which 
were still being worked successfully and profitably, were returned to this office and to the'local 
land-offices as agricultural land, and so posted on the tract-books, and became from the date of 
such return subject to sale and to selection by railroads, &c, as agricultural lands, in direct 
violation of the plain intent of Congress as expressed not only in previous legislation, but in the 
very act under which these lands were surveyed and brought into market. 

Therefore the action taken by this office in requiring agricultural claimants to submit satis- 
factory proof as to the non-mineral character of the lands sought to be entered by them was not 
only imperatively necessary to carry out the will of Congress, clearly and repeatedly expressed in 
regard to the reservation of mineral lands for mineral purposes and their disposition in a special 
manner, but had this office, after the discovery of the fact that the plats and returns made by 
surveyors were incorrect and false, continued to act on and follow them in the disposition of these 
lands, it would not only have been guilty of the grossest and most inexcusable neglect of duty, 
but it would have knowingly violated the law and become a party to the frauds perpetrated by its 
subordinates. 

To illustrate the unreliability of the surveyors' returns as to the character of these lands and 
the absolute necessity for the rule which, with your advice and consent, I have adopted, it may be 
proper to refer in this connection to some of the applications for patents for mines in California, 
the lands embracing which were returned on the official township-plats as agricultural in char- 
acter, the existence of mines therein not becoming known to this office until after the receipt of 
such applications for mining titles, viz : Schofield gold quartz claim, Eureka gold quartz claim, 
Idaho gold quartz claim, Pittsburgh gold quartz claim, Empire gold quartz claim, Sebastopol gold 
quartz claim, Auroral Star gold quartz claim, Galena gold quartz claim, Spring Hill gold quartz claim, 
New York Hill gold quartz claim, Hanson gold quartz claim, Slate Ledge gold quartz claim, 
Norambagua gold quartz claim, Eising Sun gold quartz claim, Medean gold quartz claim, Provi- 
dence gold quartz claim, Davidson quartz claim, Union Company's quartz claim, Dry Creek quartz 
claim, Sutherland quartz claim, Simpson & Aden quartz claim, Fort John quartz claim, Henry 
Dyer et aVs placer claim, William Odgers et aVs placer claim, F. C. Leutje et aVs placer claim, 
Henry Lay ton's placer claim, George Grant et aVs placer claim, Brad well & Hoag's placer claim, 
Daniel E. Carson's placer claim, Albert L. Lamb's placer claim, Sargent & Jacob's placer claim, 
Eobert Nelson's placer claim, Byrne & Walker's placer claim, N. Eeinhold et aVs placer claim, 
William Barney's placer claim. 

The foregoing claims are all within the Sacramento district, and many more could be enumer- 
ated, were it necessary to illustrate the want of reliability of the surveyor's returns as to the 
character of lands. The surveyors general were specially instructed to direct their deputies in the 
field to report the character of these lands, giving, in addition to other specified data, information 
respecting any and all coal-beds, minerals, or ores, with particular descriptions of the same as to 
quality and extent, and all diggings therefor, &c, and to designate the agricultural portions upon 
the official plats, to the end that the section of law requiring the Department to discriminate 
between the two classes of land might be properly executed ; but, with the kind of returns furnished, 
it is totally impossible to determine whether any given tract in the mineral district is properly 
agricultural land within the meaning of the law or not, or whether this office could, w T ith a clue 
regard for the execution of the law, proceed to patent, such tract as agricultural land without 
further investigation. 

Hon. T. A. Hendricks, in a recent personal call at this office, requested permission to examine 



11 

the official plat of township 20 north, range 4 east, Mount Diablo meridian ; he being', with others, 
largely interested in mines in section 29 of that township. 

He stated, from personal knowledge of the land, that what is called Table Mountain runs 
northerly and southerly in said township ; that it is very abrupt and precipitous, about half a mile 
in height, and perhaps two miles wide, being extensively mined for its underlying gold-bearing 
cement deposits, which are of immense extent and value, but difficult to work for want of water ; 
that he with others is engaged in constructing a ditch or flume, at an expense of $150,000, 
for the purpose of bringing water to work their claims in said section 29; that Morris Bavine, in 
said section, had already yielded about $2,000,000, but would not be exhausted in one hundred 
years, &c. 

Upon examination of the plat of this township, there was found nothing to show the exist- 
ence of Table Mountain ; none of the land stated by Mr. Hendricks to be so rich in mineral 
having been returned or posted upon our books as other than agricultural land. 

Under my predecessor, the rule prevailed that upon the survey of these reserved lands, home- 
steads, pre-emptions, and railroad grant rights took effect upon all such lands as were returned by 
surveyors as " agricultural," except in cases where, before such lands were patented, affidavits 
were filed alleging their true character to be mineral, in which case a hearing would be had before 
the register and receiver, to determine whether the tract was of more value for mineral than for 
agricultural purposes, mineral lands being expressly excluded from land-grants to railroads, and 
from the operation of the pre-emption or homestead laws. But I am fully convinced that this rule 
failed to afford adequate protection to the miners as a class, or prevent the disposition of mineral 
lands as agricultural. It is true that parties engaged in the real-estate business or in land specu- 
lations, and who are therefore well informed as to the regulations governing the land-offices, and 
also those miners who have acquired a knowledge of the reckless manner in which returns have 
been made by deputy surveyors, can protect themselves from the consequences of such erroneous 
and false returns, by making affidavits as to the mineral character of the lands in which they are 
directly interested, and filing the same with the register and receiver, thus necessitating a hearing 
before the land so filed on can be disposed of as agricultural ; but, inasmuch as the law does not 
provide for or require such affidavits to be filed, but does authorize the Secretary of the Interior, 
when the surveys are made, to segregate the agricultural from the mineral lands before they can 
be classed or disposed of under the law relating to agricultural lands, the miners and owners of 
mining claims have a right to suppose, and the great mass of them did undoubtedly suppose, that 
they were protected by the law without action on their part ; but if this were not so, I fail to per- 
ceive any good reason why, in a region confessedly mineral, and in which Congress has seen proper 
to hold all lands as mineral, except those specially designated as agricultural by the Secretary of 
the Interior, the burden of filing proof as to the character of the land should be imposed on the 
mineral instead of the agricultural claimant. If a mine should be discovered in a region where 
agricultural lands predominate, such, a rule would be reasonable and proper, but in a mineral region 
the burden of proof should be on the agricultural claimant, and Congress has, in the matter under 
consideration, so provided in effect by considering and treating all the lands as mineral which have 
not been specially designated by the Secretary of the Interior as agricultural. It will be observed 
that the work of designating and setting apart agricultural lands in the mineral region is not left 
to the surveyor general, or even to the Commissioner of the General Land-Office, but is by the 
statute thrown upon the Secretary of the Interior, and, therefore, according to the most liberal 
construction we can place upon the law, the disposition of these lands as agricultural, under the 
rule prescribed by my predecessor, was unauthorized and clearly illegal. 

But if we admit the propriety and legality of the proceedings under these mineral affidavits, 
they do not prevent the mineral lands from being disposed of as agricultural, except in special 
cases where contests arise between parties claiming adversely. Where the mineral and agricultural 
interests are both vested in the same person or persons, the lands will be taken as agricultural, 



12 

unless the parties in interest are required to give notice and submit proof under oath as to the non- 
mineral character of the land. 

Again, in many localities the mineral-bearing lands have not heretofore been occupied or worked 
because of the lack of water or other necessary facilities, but it does not follow, because they are 
uot at present occupied or worked by some one who is ready to contest the right of the agricultural 
claimant, that they are not mineral lands, or that tbey may not, under a changed condition of 
things, become as productive as any mines in the country. A ditch, of a few miles in length, 
frequently renders mines very profitable, that could not be worked successfully without water. 

But I have shown that there is no law which authorizes or requires these mineral affidavits, 
and there is nothing to prevent them from being Withheld or withdrawn for fraudulent purposes. 

In some cases, when the matter came on for hearing before the register and receiver, the 
mineral affiants failed to appear, and instances have come to the knowledge of this office of private 
arrangements being entered into between the respective mineral and agricultural claimants, by 
which the latter were not to be opposed in obtaining titles to the land, which, upon being patented 
as agricultural, was to be held by the several parties in pursuance of such previous agreement, and 
thus the only obstacle to the disposition of mineral lands as agricultural — the mineral affidavit — 
was withheld or removed. 

In view of the facts and circumstances set forth herein, and in my letter of the 24th of November 
last, I am unable to agree with Mr. Sargent that the order requiring proof of the non-mineral char- 
acter of lands which are sought to be entered as agricultural should be rescinded. 

On the contrary, the more I examine the question the more thoroughly I become convinced 
uot only of the propriety, but of the absolute necessity, for the order, and I therefore recommend 
that it be adhered to and strictly enforced in the future. 

In order, however, to relieve contestants of the expense and trouble of traveling long distances 
to establish the character of lands, I will, if it meets your concurrence and approval, issue instruc- 
tions to the local officers to allow the proof on that particular point to be taken before a clerk of a 
court of record for the county within which the lands are situated, after due notice has been given 
of the time and place for taking such proof. 

I am, sir, with great respect, your obedient servant, 

WILLIS DBUMMOND, 

Commissioner. 

Hon. Columbus Delano, 

Secretary of the Interior. 



Department of the Interior, General Land-Oeeice, 

March 20, 1872. 

Gentlemen : In order to save as much as possible the expense, trouble, and delay incident to 
the present manner of taking proofs as to the mineral or agricultural character of lands, it is hereby 
directed that testimony upon this point may be taken before a clerk of a court of record in and for 
the county in which the land in question is situate, after due notice in the following manner, to wit : 

Hereafter, when an application is filed to enter laud as agricultural which is alleged under 
oath to be mineral in character, or which is returned upon the official township-plat as mineral, or 
land which is now or may hereafter be suspended by order of this office for proof as to the non- 
mineral character thereof, you will, upon such application being made, require such applicant to 
publish, at his own expense, a notice thereof once each week for four consecutive weeks in a news- 
paper of largest circulation published nearest to the land in question ; such notice to give the name 
and address of the claimant, the designation of the subdivision embraced by his filing, the names 



13 

of any miners or mining companies whose claims or improvements are upon the land or in the 
immediate vicinity thereof, the names of the parties who filed the affidavits that the land is mineral, 
and finally the notice should name a day, which shall not be less than thirty (30) days from the 
date of the first insertion of said notice in such newspaper, upon which testimony will be taken 
before the county clerk, to determine the facts as to the mineral or non-mineral character of the 
land, when such persons as may be brought by the parties in interest will be examined and their 
testimony reduced to writing ; the whole to be duly attested by the seal of the court and transmitted 
to the register and the receiver, who will thereupon examine and forward the same to this office, 
with their joint opinion as to the character of the land as shown by the testimony. A copy of this" 
notice must be posted in a conspicuous place, upon each forty-acre subdivision claimed, for four 
consecutive weeks, proof of which must be made under oath by at least two persons, who will state 
when the notice was posted and where posted. 

At the hearing, there must be filed the affidavit of the publisher of the paper that the said 
notice was published for the required time, stating when and for how long such publication was 
made, a printed copy thereof to be attached and made a part of the affidavit. In every case where 
practicable, in addition to the foregoing, personal notice must be served upon the mineral affiants, 
and upon any parties who may be mining upon or claiming the land. 

At the hearing, the claimants and witnesses will be thoroughly examined with regard to the 
character of the land: whether the same has been thoroughly prospected 5 whether or not there 
exists within the tract or tracts claimed any lode or vein of quartz or other rock in place, bearing- 
gold, silver, cinnabar, or copper, which has ever been claimed, located, recorded, or worked; 
whether such work is entirely abandoned, or whether occasionally resumed; if such lode does exist, 
by whom claimed, under what designation, and in which subdivision of the land it lies ; whether 
any placer mine or mines exist upon the land ; if so, what is the character thereof — whether of the 
shallow surface description, or of the deep cement, blue lead, or gravel deposits ; to what extent 
mining is carried on when water can be obtained, and what the facilities are for obtaining water 
for mining purposes; upon what particular forty-acre subdivisions mining has been done, and at 
what time the land was abandoned for mining purposes, if abandoned at all. 

The testimony should also shovthe agricultural capacities of the land, what ■kind of crops 
are raised thereon, and the value thereof; the number of acres actually cultivated for crops of 
cereals or vegetables, and within which particular forty-acre subdivisions such crops are raised ; 
also which of these subdivisions embraces his improvements, giving in detail the extent and value 
of his improvements, such as house, barn, vineyard, orchard, fencing, &c. 

It is thought that bona fide settlers upon lands really agricultural w T ill be able to show, by a 
clear, logical, and succinct chain of evidence, that their claims are founded upon law and justice; 
while parties who have made little or no permanent agricultural improvements, and who only seek 
title for speculative purposes, on account of the mineral deposits known to themselves to be 
contained in the land, will be defeated in their intentions. 

The testimony should be as full and complete as possible; and in addition to the leading 
points indicated above, everything of importance bearing upon the question of the character of 
the land should be elicited at the hearing. 

If, upon a review of the testimony at this office, a forty-acre tract should be found to be prop- 
erly mineral in character, that fact will be no bar to the execution of the settler's legal right to 
the remaining non-mineral portion of his claim, if contiguous. 

The fees for taking testimony and reducing the same to writing, in these cases, when taken 
by a clerk of a court of record, as aforesaid, will have to be defrayed by the parties in interest. 

When, by reason of proximity to the local land-office, an applicant to enter lands of this 
class prefers to have the testimony taken before the register and the receiver, instead of the clerk 



14 

of a court of record, as aforesaid, lie has that option. In such case the mode of proceeding is 
fully set forth in the inclosed circular of the 6th May, 1871, which circular is hereby modified, as 
to the manner of giving notice, so as to conform with these instructions relative to that point. 

It must be steadily kept in mind that the testimony hereby authorized to be taken before the 
clerk of a court is not for the purpose of determining questions of conflict between either pre- 
emption or mineral claimants, but simply to determine the character of the land, whether mineral 
or agricultural. 

When the testimony is taken before the clerk of a court, as aforesaid, the register and the 
receiver will be entitled to no fees; those paid by the parties to the county clerk being all they 
are required to pay with reference to the proof as to the character of the land. 

No fear need be entertained that miners will be permitted to make entries of tracts ostensibly 
as mining claims, which are not mineral, simply for the purpose of obtaining possession and 
defrauding settlers out of their valuable agricultural improvements; it being almost an impossi- 
bility for such a fraud to be consummated under the laws and regulations applicable to obtaining 
patents for mining claims. 

The fact that a certain tract of land is decided upon testimony to be mineral in character, is 
by no means equivalent to an award of the land to a miner. A miner is compelled by law to give 
three months' publication of notice, and three months' posting of diagrams and notices, as a pre- 
liminary step ; and then, before he can enter the land, he must show that the land yields mineral ; 
that he is entitled to the possessory right thereto in virtue of compliance with local customs or rules 
of miners, or by virtue of the statute of limitations ; that he or his grantors have expended, in actual 
labor and improvements, an amount of not less than one thousand dollars thereon, and that the 
claim is one in regard to which there is no controversy or opposing claim. After all these proofs 
are met, he is entitled to have a survey made at his own cost, where a survey is required, after which 
he can enter and pay for the land embraced by his claim. 

It is quite unlikely that a miner would undertake these long and expensive proceedings, simply 
for the purpose of attempting to defraud an agriculturist out of a tract of land which was not 
mineral, but improved agricultural land, when there is an almost absolute certainty, not only of 
his scheme being frustrated, but also of his being unable to furnish the proof always required as a 
basis of patent for a mineral claim. 

You are requested to give the foregoing careful attention, and to furnish copies hereof to parties 
upon application, in order that they may be fully informed in the premises. 
Very respectfully, your obedient servant, 

WILLIS DRUMMOIsD, 

Commissioner. 

Register and Receiver, 

United States Land- Office at -. 



II. 

Department of the Interior, General Land Office, 

Washington, J). 0., April 20, 1872. 
Gentlemen: Referring to my letter to you of December 2, 1871, directing you to suspend 
from disposal as agricultural lands certain townships therein designated, until the non-mineral 
character thereof shall have first been established by competent proof taken at a hearing to be 
had after due notice, I have to state that said order is modified with respect to entries which had 
already been made and reported to this office before said instructions were issued, but will be 
strictly enforced with regard to all applications to enter such lands as agricultural made subsequent 
to said order. 



15 

The eases which had been reported prior to the date of said instructions, as aforesaid, will each 
be carefully examined in its turn, and if, from the facts in any case, a further hearing or additional 
proof is necessary, the proper ruling will be made in the premises. Yon will make this known to 
all parties in interest and acknowledge its receipt. 
Very respectfully, your obedient servant, 

WILLIS DEUMMOKD, 



i 
Commissioner. 



Register and Receiver, 

Sacramento, California. 




SEGREG-ATION 




OF 



MINERAL AND AGRICULTURAL LANDS. 



OFFICIAL CORRESPONDENCE RELATIVE TO LANDS IN THE 

MINERAL REGION WHICH HAVE BEEN SUSPENDED 

FROM AGRICULTURAL ENTRY UNTIL SHOWN 

TO BE NON -MINERAL. 



GENEEAL LAND-OFFICE, JUNE 17, 1872. 




WASHINGTON: 

GOVERNMENT PRINTING OFFICE 

1872. 




mmmm 



mnjwmjiJMi 



3A& 



^mmm 



AA*iMiiii&kA 



A'© 1 **^ s- . s v ,-^AAA^AAA' 

A* AAA... 

mfMmm 



(W)f-S^?K'- s % M * a 1w M , 



;AA^^ 



AAaA. 



: A A A A A A 






WB 



^flftK#W^ 



,SV«,0\ /v Q 



X&l*T»UFu 






^Ap 






^m*m%^m 



HUSH lM^&*1Kv '-^M^AA 1 



^%M%&* 



■AAA* 










1 * m ^MmMmzm?£ : z .AAA* 



^Aaa 



^*Aa£ 



k'l'AAAi 



if . 






^.yii 



,/Wv^, 



<*» 



jmVfH 



r ^TiVZY^l«reXOa 



MMiW 






/V\A 



,A^^^^^ 



mmmPm 



"QAaAaa*, 



kas^SS 



flXQUU 



#*MA 



^Maa 



MaAAaaaAa 



f!f»«SM 















aaaO/Via 



^ A A A\i : A A A'' a' A : 



aaAHAi 



AA.AaaAAA! 



^WW 



Afm 



<?A?£ 



■WWW 



^.AA*uAA&a&.' 



^Sft^M^fcCfiS 



W-/s'»^Mi 



ACA'AA 






«i«iAi 



*M^ftfttiftKk*AtM^M 



^aaajSS 



AAAaAAAA 



A A AA^ 



,;/^AA 



M^^A«iAAaAAAAAAA^^O/>_ ^3.$5fi%AA A l A* 



aa^/M/Mi 



tfflafe " 



mfm^ 



M/V^ 



^AAaa^A^ 



3-1^/^ 



ww«n^ 



a £ ? ? :'Sa A 3 A3; A a A&U C ® aA A^ 






^^^fe^lwa/W^Sl; 









Aa A ' A a.a 



AAAaAa^ 



aSM 









;aAa^§ 



„ WH] ' 



A^A,^% 



a'aAAAaA 









mmm 



: : : '^^AAAA,-y/ ^ :,^; 

r\ A /A ■■ - ->, ' "■ -^ a ** 

5 o o c a o u; A; A. -, r *o £ 3 P o« 
«; n 9 3 s stSh aa AAAnnGnAy 



OAAaAAA. 



with* 



^KOT^ 



^-m 



^ A A A A, 






aAMAa^ 



A^AAa^A^^^^, 



;AAAA 



lynAAAHAA^ji^ 






a aaaaAAA/ 



£^1§*$^^ 



« ^a'Aa^HrA'j 



AAAAAf^r 



A" A A A i 



